Court of International Trade

CBP was wrong to exclude certain motor frame assemblies from entry to the U.S. as "drug paraphernalia" since the goods, which will be used to make a marijuana processing machine, are legal in the states of Washington and Nevada, importer Eteros Technologies USA said in a June 11 complaint in the Court of International Trade. Eteros claims that there is an exemption to the law that bans the import of drug paraphernalia when a person who is allowed by local, state or federal law to "manufacture, possess or distribute 'drug paraphernalia.'" CBP has consistently failed to recognize this exemption, Eteros said (Eteros Technologies USA, Inc. v. United States, CIT #21-00287).

The Court of International Trade sustained in part and remanded in part the Commerce Department's remand results in an antidumping administrative review on welded line pipe from Korea in a June 7 decision made public on June 15 -- the second on the case. Judge Claire Kelly took issue with Commerce's decision to reallocate the costs of production for respondent NEXTEEL Co.'s non-prime welded line pipe products to its prime products when calculating NEXTEEL's constructed value in the review. The judge sustained all of Commerce's remaining determinations in the case including findings that a particular market situation did not exist in Korea for a key input of welded line pipe products and the agency's reversal, under protest, of its initial rejection of respondent SeAH's Steel Corp.'s third country sales data into Canada to calculate normal value.

A far-reaching legal challenge to Section 232 steel and aluminum tariffs brought by ME Global was stayed by the Court of International Trade pending an appeal of a related case in the U.S. Court of Appeals for the Federal Circuit, according to a June 14 stay order (ME Global, Inc. v. United States, CIT #20-00130) The Federal Circuit case, Universal Steel Products, Inc. v. United States, carries arguments similar to those in ME Global's case in that both claim that procedural requirements were ignored in President Donald Trump's expansion of the tariffs (see 2105250077).

The Court of International Trade is set to hold oral arguments over a key relief question in the massive Section 301 litigation on June 17. Chief Judge Mark Barnett sent out four questions to the parties in a June 14 letter concerning the following: (1) how uncertainty over the court's authority to provide relief establishes that the plaintiffs are likely to suffer irreparable harm without this relief, (2) cases in which the U.S. Court of Appeals for the Federal Circuit found that CIT did not determine appropriate relief, (3) how the first question is articulated by the Supreme Court decision Winter v. Natural Resources Defense Council and (4) the court's authority to enter a money judgment instead of reliquidation in the event the plaintiff's preliminary injunction prevails. The oral arguments will be held over the motion for a preliminary injunction filed by the plaintiffs to freeze the liquidation of unliquidated entries from China with lists 3 and 4A tariff exposure (see 2106070017).

The Court of International Trade found again that President Donald Trump violated procedural time limits when expanding Section 232 tariffs to steel and aluminum “derivatives,” in a June 10 decision. Citing CIT's prior case on the topic, PrimeSource Building Products Inc. v. United States (see 2104050049), Judges Jennifer Choe-Groves and Timothy Stanceu awarded refunds for tariffs paid to steel fastener importers Oman Fasteners, Huttig Building Products and Huttig Inc. In Oman Fasteners, LLC. et al. v. United States, the court ruled that the president illegally announced the tariff expansion after the 105-day deadline laid out by Section 232, but denied the plaintiff's other two claims, without prejudice, on the procedural violations of the tariff expansion. The panel's third member, Judge Miller Baker, concurred in part and dissented in part.

Kazakhstan's Ministry of Trade and Integration is denied the right to join a countervailing duty case on silicon metal from Kazakhstan in the Court of International Trade as a plaintiff-intervenor, Chief Judge Mark Barnett declared June 11. "The motion is denied without prejudice for failure to comply with USCIT Rule 24," Barnett said in a text order. Defendant-intervenors and petitioners in the underlying CVD case, Globe Specialty Metals and Mississippi Silicon, said the trade ministry failed to mention the administrative determination to be reviewed and the issues the proposed intervenor wants to litigate (see 2106090088) (Tau-Ken Temir LLP et al. v. United States, CIT #21-00173).

The Court of International Trade sustained the final results of the second administrative review of the antidumping duty order on steel nails from Oman, in a June 14 decision. Judge Richard Eaton held that there was substantial evidence to back the Commerce Department's decision to use a Japanese company's financial statement to determine constructed value profit and indirect selling expenses for mandatory respondent Oman Fasteners, as opposed to an Indian company's financial statement. Petitioner and plaintiff in the case, Mid Continent Steel & Wire, originally contested the selection.

Importers must file protests to preserve their ability to obtain refunds under exclusions from Section 301 tariffs, the Court of International Trade said in a June 11 decision. Dismissing a lawsuit from importers ARP Materials and Harrison Steel Castings, Judge Miller Baker found the court did not have jurisdiction to hear their challenge since the importers did not timely file protests of the CBP liquidations assessing the Section 301 duties.

Even if the Commerce Department did not act within its authority when deciding not to include the views of countertop fabricators in its industry support determination before beginning an antidumping and countervailing duty investigation on quartz surface products from India, the agency still had the requisite level of industry support and the authority to start the investigation anyway, petitioner Cambria Company said in a June 9 brief backing the Department of Justice's defense in a case at the Court of International Trade (Pokarna Engineered Stone Limited v. United States, CIT #20-00127).

Chinese exporter Changzhou Trina Solar Energy's case was severed from a consolidated action in the Court of International Trade because the other plaintiffs are appealing the trade court's decision in the U.S. Court of Appeals for the Federal Circuit, a June 9 order said. Trina originally filed its lawsuit in CIT to challenge the final results of the fourth administrative review of the countervailing duty order on crystaline silicon photovoltaic cells from China. As a result of the CIT decision, Trina's total CVD rate dropped from 9.12% to 2.93%. CIT also ordered entries related to Trina's case liquidated (Canadian Solar Inc. et al v. United States, CIT Consol. #18-00184).